STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARK WEARE, Applicant

ARGUS TECHNICAL SERVICE, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1998002069

The employer and its insurance carrier (respondents) submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on May 18, 1999. The applicant submitted an answer to the petition and briefs were submitted by the parties. On January 24, 2000, the commission issued an order for the taking of additional evidence in the form of a supplementary medical opinion from Dr. David Coran, and a rebuttal medical opinion should respondents choose to obtain one. At issue are nature and extent of disability and liability for medical expense attributable to the conceded work injury of December 23, 1997.

The commission has carefully reviewed the entire record in this matter and hereby affirms in part and sets aside in part the administrative law judge's Findings and Interlocutory Order.

The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birth date is January 1, 1965, was employed as a construction electrician for the employer. On December 23, 1997, he and a co-worker picked up a spool of wire weighing 125 or 150 pounds. As he was twisting at the waist to shove the spool into a van, he felt a "muscle pull" in his low back. This occurred near the end of the day. Thereafter, his back was sore with its condition "up and down" but he resolved to work through it. However, at the end of December he was lifting "heavier" objects and his low back and left buttock pain increased. On January 5, 1998, his wife convinced him to go to an urgent care clinic.

The urgent care physician, Dr. Jeffery Warner, took a history of left buttock and left leg pain beginning two weeks previously, with the applicant unable to think of any certain instance or event that might have triggered it. He did tell Dr. Warner he had been wearing a heavy work belt and that the paid had become progressively worse. Dr. Warner prescribed medication and gave the applicant the names of several physicians he might see.

The applicant was seen by Dr. Michael Ritter on January 12, 1998. Dr. Ritter took a history of left buttock pain beginning around December 23, 1997, and progressing over the next several weeks. The applicant could not recall any definite injury. He had current complaints of sharp pain with certain movements and prolonged sitting, as well as occasional pain shooting down his left leg. Dr. Ritter preliminarily diagnosed a lumbar strain with left-sided sciatica. Dr. Ritter continued conservative treatment and ordered a lumbar MRI on February 5, 1998. The radiologist noted a moderate paracentral disc herniation at L5-S1, and also wrote in the conclusion of her report that there was a disc herniation at L4-5.

Dr. Ritter referred the applicant to Dr. Arvind Ahuja, a neurologist. Dr. Ahuja first saw the applicant on February 12, 1998, and took a history of sudden development of left buttock pain on December 23, 1997, with no triggering event other than the fact that he had been lifting a heavy spool at work. Dr. Ahuja noted the MRI showed a disc herniation at L4-5 and recommended steriod injections. The applicant had two injections before the insurer cut off payments.

On March 3, 1998, at the insurer's request, Dr. Jacques Hussussian examined the applicant. Dr. Hussussian took note of the fact that Dr. Warner's and Dr. Ritter's notes did not describe the spool-lifting event. He opined that the MRI suggested preexisting, long-standing problems of a paracentral disc herniation at L4-5, and a disc herniation at L5-S1. Dr. Hussussian noted that the applicant had initially experienced improvement of symptoms after seeing Dr. Ritter, and opined that the disc herniations were preexisting. He further opined that the applicant's work activities temporarily aggravated the preexisting condition, and that he should be able to return to work a week after his second epidural injection. Dr. Hussussian concluded that the temporary aggravation of the applicant's preexisting condition would not result in any permanent disability.

On March 26, 1998, the applicant saw a Dr. Mohammed Rassouli who referred him to Dr. James Lloyd, a neurosurgeon. On June 12, 1998, Dr. Lloyd took a history including the spool lifting, and recommended surgery for the L5-S1 disc herniation. The applicant could not pay for the surgery but he saw a Dr. Abdo Alward on July 8, 1998, for a "consultation" based on Dr. Lloyd's surgery recommendation. On July 20, 1998, the applicant saw Dr. David Coran for surgical consultation. Dr. Coran's clinic note lists Dr. Alward as the referring physician, while the applicant testified that Dr. Rassouli referred him to Dr. Coran.

On August 12, 1998, Dr. Coran performed an L5-S1 hemilaminotomy and discectomy. Dr. Coran opined that assuming the history provided to him by the applicant was accurate, the L5-S1 disc herniation was directly caused by the work incident of December 23, 1997. Dr. Coran assessed eight percent permanent partial disability. Dr. Coran's clinic note of July 20, 1998, recorded a history of the applicant developing severe low back, left buttock, and leg pain at the time he lifted the spool into the van. On June 10, 1998, Dr. Ritter completed a WC-16-B in which he found a temporary aggravation of a preexisting condition with no permanent disability. In a letter dated April 28, 1998, Dr. Ritter indicated that he had reviewed his records and the applicant clearly stated to him on January 12, 1998, that he could not recall any specific injury, and described the gradual progression of a dull, aching pain with development of radicular symptoms.

The commission carefully reviewed the entire record, including the additional medical opinion submitted from Dr. Coran on March 31, 2000. The commission concluded that while the applicant may not have been the most accurate or consistent historian when relating to his physicians the details of his work injury, the injury was real and resulted in the L5-S1 disc herniation, consistent with Dr. Coran's medical opinion.

When the applicant was first seen at the Harwood Urgent Care Center on January 5, 1998, Dr. Warner recorded that the applicant could not recall any certain instance or event which might have triggered his pain, which had been progressively worsening for two weeks (the pain was described as sharp, shooting pain from the mid left buttock all the way down his leg to his ankle). In his initial evaluation with Dr. Ritter on January 12, 1998, the applicant's problem was recorded as having begun "around December 23, 1997," and it was noted that he had been doing quite a bit of heavy work.

These first two medical histories are not entirely consistent with the fact of an injury causing permanent disability and occurring on December 23, 1997, when the applicant and another individual were lifting a 125-50 pound spool of wire. However, neither are they entirely inconsistent with such facts. The time frame in the histories is consistent, and the commission is familiar with the fact that busy physicians are not always careful to accurately describe the details of a traumatic work event in their clinic notes. The applicant credibly testified that he did tell Dr. Ritter about the work incident, and Dr. Ritter's notes do recount the date the incident and that the applicant had been doing "quite a bit of heavy work." Dr. Ritter wrote in a letter to the insurance carrier dated April 28, 1998, that he agreed with Dr. Hussussian that the applicant's work with the employer only temporarily aggravated the applicant's preexisting disc pathology. He also wrote that he had reviewed his records and the applicant clearly stated to him on January 12, 1998, that he could not recall any specific injury. Either Dr. Ritter does not recall the applicant telling him about lifting the spool of cable, or the applicant is mistaken about what he told Dr. Ritter. Given the credible nature of the applicant's testimony and the lack of specificity in Dr. Ritter's note of January 12, 1998, regarding what "heavy work" the applicant was doing on December 23, 1997, the commission found it credible that Dr. Ritter's memory of exactly what the applicant told him is flawed.

Dr. Ahuja's history taken on February 12, 1998, recorded a sudden development of pain on December 23, 1997, and indicated the applicant " . . . could not attribute any event that triggered it other than the fact that he had been lifting a heavy spool of cable at work." This history is consistent with the applicant's testimony.

The commission remanded that matter for an additional medical opinion from Dr. Coran because his original history of the event described the applicant lifting and straining with 150 pounds of cable, resulting in severe low back, left buttock, and leg pain at that time. This history did not indicate whether Dr. Coran was aware of the fact that a co-worker was lifting the cable spool with the applicant, nor was it clear whether Dr. Coran's history was consistent with the applicant's description of his pain onset.

Dr. Coran's opinion of March 31, 2000, noted that his history was based on the applicant's report of the injury as well as Dr. Lloyd's written history, and that there was a person helping the applicant lift the spool. Dr. Coran noted that he understood the pain onset to have felt to the applicant " . . . like a muscle pull with soreness and tightness, with some radiation of pain into the left buttock and thigh." He also noted that the applicant described the pain becoming more and more severe until he was unable to work on January 5, 1998. None of this is inconsistent with the applicant's description of the event. At the hearing held on March 25, 1999, the applicant gave testimony which could be understood as saying that he did not experience any left buttock pain until he was lifting heavy objects at work "at the end of December" in 1997. It could also be understood to say that he experienced left buttock pain on December 23, 1997, which thereafter increased. Given the evidence in this proceeding, including Dr. Ritter's original history which noted left buttock pain beginning around December 23, 1997, the commission found credible the latter inference.

The commission found credible Dr. Coran's opinion that the work incident caused a disc herniation, and that as the applicant continued to use his back with heavy labor at work, the disc herniation became more severe and symptomatic. Accordingly, the commission herein affirms the administrative law judge's finding that the work injury of December 23, 1997, caused the applicant's disability, including the surgery performed on August 12, 1998.

The applicant is therefore entitled to temporary total disability for the period between March 17, 1998 and January 4, 1999, both dates inclusive, which amounts to 42 weeks at the weekly rate of $509.00, totaling $21,378.00. Dr. Coran's assessment of eight percent permanent partial disability of the body as a whole is also accepted, which entitles the applicant to 80 weeks of compensation at the applicable rate of $174.00 per week, totaling $13,920.00, all of which is accrued. The applicant' s attorney is entitled to a 20 percent fee against these awards, and also $402.39 in costs.

With regard to the claimed medical expenses, a dispute exists concerning whether or not the applicant exceeded his two choices of physicians, pursuant to Wis. Stat. § 102.42(2). The applicant's urgent care treatment at Harwood constituted emergency care and did not result in a choice of physician, pursuant to Wis. Stat. § 102.42(2). Dr. Ritter was the applicant's first choice of physician, and he referred the applicant to Dr. Ahuja. Dr. Rassouli was the applicant's second choice of physician and he referred the applicant to Dr. Lloyd. The applicant testified that Dr. Rassouli also referred him to Dr. Coran, but Dr. Coran's clinic note lists Dr. Abdo Alward as the referring physician. The applicant saw Dr. Alward on July 8, 1998, for a consultation in response to Dr. Lloyd's surgery recommendation, but the record does not make it clear whether Dr. Lloyd referred the applicant to Dr. Alward.

The case will be remanded to the department for clarification of the medical expense issue. If Dr. Alward was in the chain of referral from Dr. Lloyd, and Dr. Alward referred the applicant to Dr. Coran, then all Dr. Coran's expenses are covered. Alternatively, if Dr. Rassouli referred the applicant to Dr. Coran then all Dr. Coran's expenses are covered.

In Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 623, 583 N.W.2d 662 (1998), the court held:

"For the purposes of § 102.42, an employee `chooses' a practitioner by seeking treatment from that practitioner and by seeking reimbursement for that practitioner's expenses from the employee's employer or its insurance carrier."

Accordingly, if the evidence demonstrates that Dr. Coran was not in a chain of referral, and reimbursement for medical expenses attributable to physicians within the two chains of referral were sought prior to the hearing date, then expenses attributable to Dr. Coran's treatment would not be the responsibility of the respondents. An applicant may not make his two choices of practitioners and seek reimbursement for their bills from the employer/insurance carrier, subsequently change his mind, and then attempt to substitute another practitioner as his choice under Wis. Stat. § 102.42.

Based on the above findings, the parties should be able to review the facts without the department's assistance, and determine what medical expenses are due or not due. However, should further dispute arise, jurisdiction remains with the department to resolve such dispute through further hearing.

Jurisdiction will be reserved with respect to the possibility of additional disability and/or medical care.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are affirmed in part and reversed in part. The commission's Findings and Interlocutory Order are substituted therefor. Within 30 days from this date, the employer and its insurance carrier shall pay to the applicant the sum of Twenty-seven thousand eight hundred thirty-six dollars and one cent ($27,836.01); to applicant's attorney, Joseph Weigel, fees in the amount of Seven thousand fifty-nine dollars and sixty cents ($7,059.60), and costs in the amount of Four hundred two dollars and thirty-nine cents ($402.39).

Jurisdiction is reserved for such further findings and orders as may be warranted, and the matter is remanded to the Worker's Compensation Division for resolution of the medical expense issue in accordance with the above findings.

Dated and mailed November 13, 2000
wearena.wrr : 185 : 2   ND § 5.48

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: ATTORNEY JOSEPH W WEIGEL
EISENBERG WEIGEL CARLSON BLAU & CLEMENS SC

ATTORNEY PETER L TOPCZEWSKI
STILP & COTTON

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